Monday, April 7, 2014

ST. GEORGE — By complaint filed Sept. 20 in the U.S. District Court for Utah, Washington County is being sued by a private land developer who, in 1995, volunteered to commit 2,440 acres of his own land into the Red Cliff’s Desert Tortoise Reserve. The land developer, James Doyle, claims that for 18 years the county has failed to meet its obligation to facilitate a deal with the federal government to either purchase Doyle’s land outright, or to exchange it for land of similar value.

County in crisis

In 1990, Doyle purchased 2,440 acres of land in the southern foothills of the Pine Valley Mountain with the intention of building a golf course and a community of luxury homes. In 1994, just as Doyle was preparing to break ground on the project, the U.S. Fish and Wildlife Service designated most of northern Washington County as a critical habitat for the endangered Mojave Desert Tortoise. Federal regulations prohibited development throughout much of Washington County until the county presented Fish and Wildlife with a Habitat Conservation Plan that protected the tortoise’s natural habitat.

The permit allowed development in Washington County to resume, just as demand for housing in the area was about to reach an all-time high

County officials worked with private land owners, various municipalities, and federal and state governments to create a conservation plan that set aside 62,000 acres of desert tortoise habitat, forming the Red Cliffs Desert Reserve. As a result, in 1996, U.S. Fish and Wildlife issued a countywide incidental take permit: a permit which allowed for the “taking” (disruption) of desert tortoise habitat anywhere outside of the HCP. The permit allowed development in Washington County to resume, just as demand for housing in the area was about to reach an all-time high.

Doyle, along with more than a dozen other private land owners, voluntarily agreed to commit their land to the reserve with an understanding that the Bureau of Land Management would either purchase the land for a fair price or else offer an exchange of similarly valued property, elsewhere.

At a turtle’s pace

Doyle is now suing Washington County, as well as the BLM, the U.S. Department of Fish and Wildlife, and current U.S. Secretary of the Interior, Sally Jewell. Doyle claims that both federal and local governments have not followed through on their promises and, as a result, Doyle has been ruined, financially.

In a 2000 hearing of the U.S. House Subcommittee on Forests and Public Land Management, Doyle testified that delays in reaching an agreement with the federal government had forced him to sell his personal belongings in order to meet the demands of his creditors.

I have had to sell my business assets, including my airplane and my office building in St. George, Utah

“I have had to sell my business assets, including my airplane and my office building in St. George, Utah,” Doyle testified. “I have also had to sell my home in St. George, and just recently, I had to sell my family home in Idaho.”

Doyle’s attorney, Timothy B. Anderson, said that, before the Desert Tortoise issue arose, Doyle incurred many expenses while preparing the land for development.

“Doyle invested significant funds to plan and develop his Washington County land as a golf resort and residential development,” Anderson wrote in the lawsuit, filed on September 9. “He created a Master Plan, obtained water rights, secured zoning adjustments, commissioned transportation and engineering studies, and built infrastructure.”

Doyle said that the government sanctions placed on the HCP land made it difficult to borrow the money he needed to pay off his creditors and meet his tax burdens while he waited for a land-exchange or outright sale to take place.

“I have had to borrow substantial amounts of money, sometimes at interest rates as high as 100 percent,” Doyle said in his testimony to the subcommittee. “I have exhausted both my personal and company resources trying to obtain fair compensation for my property.”

Once Washington County had what it wanted, then it’s incentive to follow up and treat Mr. Doyle fairly had gone away

Anderson said that the HCP implementation agreement obliged Washington County to facilitate compensation for Doyle’s land, or else to purchase it themselves. After 18 years, neither has happened. “Once Washington County had what it wanted, then it’s incentive to follow up and treat Mr. Doyle fairly had gone away.”

Nearly every other private land owner who entered into the HCP agreement was compensated for their land, Anderson said, except for Doyle.

Doyle now retains only 247 of the originally 2,440 acres he originally placed into the reserve. In order to meet the demands of his creditors, he said, he has been forced to sell his holdings, piece by piece, for far less than he believes the property is worth.

“The land developers got what they wanted, the people got what they wanted, but Jim Doyle had his property taken away by creditors,” Anderson said.

Who’s to blame?

Washington County Administrator Dean Cox said the county has done everything it was supposed to do under the HCP agreement.

“The county’s responsibility under the HCP was to facilitate (a deal between Doyle and the federal government).” Cox said that that several deals for land exchanges or purchases for Doyle’s land have fallen through for various reasons.

“Offers were made,” said County Commissioner James Eardly. “There were offers, substantial offers, but again, the agreement said there has to be a willing buyer and willing seller.”

Doyle turned down multiple offers from the federal government, Eardly said. “One offer was just south of $28-million,” he said, “which would have been many, many, many times what he invested in that land.”

Janine Blaeloch, the director of Western Lands Project – a public lands advocacy group that fights the exchange of government lands into private ownership – spoke about Doyle’s land issues in 2001 to the U.S. House Subcomittee on Forests and Public Land Management. In her testimony, Blaeloch said that when Doyle purchased the land in 1990, he knew that his land was on Desert Tortoise habitat.

For him to portray himself as an innocent victim of federal regulation is grossly misleading

“Mr. Doyle did not make a down payment to the state on his land purchase until June 1990, well after the tortoise was first listed (as an endangered species),” Blaeloch said. “Mr. Doylye did not go blindfolded into this land purchase, and for him to portray himself as an innocent victim of federal regulation is grossly misleading.”

Anderson does not deny that his client rejected a $28 million offer from the BLM. “If I said I wanted you to accept $28 million for all of St. George, that would not have been a very good offer,” he said.

In March, 2006, the Salt Lake Tribune reported that Doyle commissioned an appraisal that valued his land at $70 million. Doyle has maintained that his land should be valued at what it would be worth if there were no tortoise issues at all because of a special provision of the Omnibus Parks and Public Management Act of 1996 (sec. 309); the provision states that HCP lands in Washington County must be valued “without regard to the presence of a species listed as threatened or endangered.”

Washington County denies that Doyle has a legitimate claim against the county. The county has done everything in its power to help facilitate a deal between Doyle and the federal government, Cox said. In a motion to dismiss Doyle’s lawsuit, attorneys representing the county reject Doyle’s claims because private landowners were not specifically listed as parties in the HCP implementation agreement. Furthermore, the motion claims that the statute of limitation for taking action on the damages alleged by Doyle has long expired.

Cox said that he can understand Doyle’s frustration in dealing with the federal government. “The county really does empathize with these land owners,” he said, “but we’ve done everything that we can do.”

Washington County filed a motion to dismiss the case on Nov. 22, which Doyle has opposed. If his case survives the motion and proceeds, he has asked for a jury trial.

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